FCC: Broadband Providers Not Entitled to First Amendment Protections

By Rudy Takala | March 12, 2015 | 2:14pm EDT


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(CNSNews.com) – Two weeks after passage, the Federal Communications Commission (FCC) finally released its landmark “net neutrality” regulations Thursday morning.

Among its many determinations, the FCC stated that broadband providers do not enjoy First Amendment protections because they do not have a right to free speech.

“The rules we adopt today do not curtail broadband providers’ free speech rights,” the commission said on page 268 of its decision, noting that because they merely serve as a means for others to express themselves, broadband providers are not entitled to free speech rights themselves.

“When engaged in broadband Internet access services, broadband providers are not speakers, but rather serve as conduits for the speech of others," the FCC stated.

However, the point is a matter of contention because the decision also says that providers “shall not block lawful content, applications, [or] services.” (page 284).

The commissioners acknowledged that such a problem has not arisen to date, stating, “The record reflects that broadband providers exercise little control over the content which users access on the Internet.”

If broadband providers did exercise such control, the commission suggested, they may have some justification for seeking First Amendment protections.

“Claiming free speech protections under the First Amendment necessarily involves demonstrating status as a speaker,” the decision stated. “Absent speech, such rights do not attach.”

After finding that broadband providers themselves do not have a right to free speech, the FCC said that its new net neutrality rules protect the First Amendment rights of those who use the providers to access the Internet.

“Indeed, rather than burdening free speech, the rules we adopt today ensure that the Internet promotes speech by ensuring a level playing field for a wide variety of speakers who might otherwise be disadvantaged,” the decision continued.

Even if the ruling does constitute a potential violation of Internet providers’ First Amendment rights, a majority of the five commissioners said, there was a compelling governmental interest in doing so.

“Even if they were engaged in speech, the rules we adopt today are tailored to the important government interest in maintaining an open Internet as a platform for expression, among other things,” the decision concluded.

The regulations passed on a 3–2 vote on February 26, with the FCC’s three Democratic commissioners voting in favor of the new net neutrality rules and its two Republican commissioners voting against.

The rules must be approved by the Office of Information and Regulatory Affairs (OIRA) next, after which they will proceed to a period of congressional review before being published in the Federal Register.

After their publication, they are expected to face judicial scrutiny.

Related: Congressional Republicans Differ on Ways to Curb Net Neutrality Rules

Related: Federal Communications Commission Passes Controversial Net Neutrality Rules

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